General Duty Clause Enforcement: “No PEL, No Problem”

11/17/15

Consistent with previous pronouncements from OSHA, a new compliance directive for OSHA inspectors instructs them to use the General Duty clause when safety data sheets warn of chemical hazards. When a hazardous substance lacks a Permissible Exposure Limit (“PEL”), OSHA informs its inspectors to refer to safety data sheets (“SDS”) to investigate whether there are serious chemical exposure hazards in the workplace. Information from those sheets can help determine if the four required elements for a general duty clause violation are present. This directive instructs OSHA inspectors on how to enforce the updated hazard communication standard.1 

What remains to be seen is whether OSHA will extend the reasoning to cases where a SDS indicates that a hazard exists beyond the PEL. This is an issue that has been litigated but not fully adjudicated regarding whether OSHA’s newly annotated PEL tables with “updated” exposure limits could be used to establish knowledge of a recognized hazard. The employer ultimately settled in the Fiberdome case, agreeing to comply with more stringent exposure limits.2 Consequently, a court has yet to rule on the issue.

The directive also addresses several other issues regarding the new hazard communication standard.

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1 Inspection Procedures for the Hazard Communication Standard, OSHA Directive No. CPL 02-02-079, available here.
2 Fiberdome Inc. agrees to limit employee exposure to styrene, accept general duty clause citation issued by OSHA at Lake Mills, Wis., fiberglass plant, OSHA Regional News Release (U.S. Dep’t of Labor, Office of Public Affairs), July 31, 2014, available here.

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